EFF leader Julius Malema’s legal team will have an uphill battle to prove that his five-year direct imprisonment sentence is unjust and too harsh.
This is according to legal experts, who said on Thursday that the threshold of chances for a successful appeal was quite high.
Dr Shadi Maganoe, a senior lecturer at Wits University, said Section 309 of the Criminal Procedure Act requires a demonstration of a failure of justice or a clear misdirection to succeed on appeal and that appeals against sentences were generally not easy to win.
However, it was not impossible. “The high court will usually respect the magistrate’s decision unless there’s a strong indication something went wrong in a meaningful way,” she said.
The KuGompo magistrate’s court on Thursday granted Malema leave to appeal after being found guilty on firearm charges. He was earlier in the day sentenced to five years for unlawful possession of a firearm; two years for unlawful possession of ammunition (to run concurrently); and a R20,000 fine or six months’ imprisonment for unlawful discharge of a firearm, failure to take reasonable precautions to avoid danger to a person or property, and reckless endangerment of a person or property.
Section 309 (3) makes it clear that a conviction or sentence will not be overturned just because of a minor mistake; the error must have resulted in a failure of justice, meaning it had a real impact on the outcome.
— Dr Shadi Maganoe, Wits University senior lecturer
Maganoe said an appeal to the high court was based on the trial record, not a fresh hearing. This means Malema’s team would have to show that the magistrate made a material error in law or fact. “Importantly, Section 309 (3) makes it clear that a conviction or sentence will not be overturned just because of a minor mistake; the error must have resulted in a failure of justice, meaning it had a real impact on the outcome,” she said.
“Section 309(3) also gives the high court the power to change a sentence, but courts are cautious in doing so. Malema’s team would need to show that the magistrate did not properly exercise their discretion in sentencing, for example, by overlooking important factors or imposing a sentence that is clearly unreasonable. Without that kind of misdirection, the high court is unlikely to interfere.”
Adv Mahlodi Moufhe said the appeal was going to be a mountain to climb for Malema’s team. “I think Malema thinks that this is a minor offence. Firearm regulations are very stringent. And in a country where many people are dying at the hands of firearms, the courts won’t take lightly any situation where discharge of firearms is done willy-nilly.”
He said the only mitigating factor for Malema is that the bullet did not harm anyone.
Lawyer Ulrich Roux said numerous factors will be taken into consideration by the high court on appeal. These include previous convictions and pending cases, and the fact that Malema was a first-time offender and that his handling of the firearm did not harm anyone.
“I think they will focus on the fact that the sentence is too harsh for a first-time offender and that it induces a sense of shock in society,” he said.
Malema’s sentencing saw chaos unfold in a number of cities as angry EFF supporters took to the streets.
In Mbombela, Mpumalanga, the police used rubber bullets, stun grenades and teargas to disperse EFF supporters blocking the N4 highway after Malema’s sentencing. In Johannesburg, EFF supporters protested near a large screen outside the Johannesburg high court that broadcast live the court proceedings. When the sentence was announced, the crowd grew rowdy, resulting in businesses in the CBD forced to close.
Meanwhile, the court locked its gates for safety as red-bereted marchers, some armed with golf clubs, sjamboks and wooden planks, moved through the street.
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